Citation Nr: 0120926
Decision Date: 08/16/01 Archive Date: 08/17/01
DOCKET NO. 97-32 161A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for a back disorder
secondary to the veteran's service-connected left inguinal
hernia.
2. Entitlement to a compensable evaluation for hemorrhoids.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
C. L. Mason, Counsel
INTRODUCTION
The veteran served on active duty from November 1980 to
November 1984. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from a March 1997 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Montgomery, Alabama.
REMAND
There was a significant change in the law during the pendency
of this appeal. On November 9, 2000, the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 et
seq. (West Supp. 2001)) became law. This law redefined the
obligations of VA with respect to the duty to assist and
included an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. This law also eliminated the concept of a
well grounded claim and superseded the decision of the United
States Court of Appeals for Veterans Claims in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v.
Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam
order), which had held that VA could not assist in the
development of a claim that was not well grounded. This
change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA, or filed before the
date of enactment and not yet final as of that date. VCAA, §
7(a), 114 Stat. at 2099-2100; see also Karnas v. Derwinski, 1
Vet. App. 308 (1991).
Because of the change in the law brought about by the VCAA, a
remand in this case is required for compliance with the
notice and duty to assist provisions contained in the new
law. In addition, because the RO has not yet considered
whether any additional notification or development action is
required under the VCAA, it would be potentially prejudicial
to the appellant if the Board were to proceed to issue a
decision at this time. See Bernard v. Brown, 4 Vet. App. 384
(1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992)
(published at 57 Fed. Reg. 49,747 (1992)). Therefore, for
these reasons, a remand is required.
In an effort to assist the RO, the Board has reviewed the
claims file and identified certain assistance that must be
rendered to comply with the VCAA. However, it is the RO's
ultimate responsibility to ensure that all appropriate
development is undertaken in this case. The Board observes
that the medical evidence of record is incomplete or stale.
Specifically, the Board notes that the most recent VA medical
records in the claims file are dated in January 1998 and
relate to the veteran's hospitalization. However, complete
VA medical records were last obtained in 1996. In his
November 1997 substantive appeal, the veteran reported that
he had appointments at the Tuskegee VA Medical facility in
December 1997 and May 1998. Additionally, the most recent VA
examination of the veteran's
service-connected hemorrhoids was in January 1996, more than
5 years ago.
Furthermore, the veteran has claimed that his back disorder
resulted from his service-connected inguinal hernia repairs
to include surgical scars. In support of his claim, the
veteran submitted a July 1996 VA medical record which
indicated that the veteran's low back pain possibly secondary
to chest surgery. However, complete VA medical records after
January 1996 are not of record. In view of such
documentation, the Board finds that the veteran should be
scheduled for a VA examination of his back. VA's duty to
assist the veteran includes obtaining recent medical records
and a thorough and contemporaneous examination in order to
determine the nature, etiology, and extent of the veteran's
disabilities. Veterans Claims Assistance Act of 2000 (VCAA),
38 U.S.C.A. § 5103A (West Supp. 2001).
Finally, the Board notes that the veteran filed a claim for
Chapter 31 vocational rehabilitation training in July 1996.
However, the veteran's Chapter 31 vocational rehabilitation
file is not of record. As the veteran's Chapter 31 file may
contain relevant information pertaining the veteran's current
claim, this file should be obtained.
Accordingly, this case is REMANDED for the following:
1. The RO should obtain the names and
addresses of all medical care providers,
both VA and non-VA, who treated the
veteran for his back and hemorrhoid
disabilities since January 1996. After
securing the necessary release, the RO
should obtain these records.
2. The RO should associate the veteran's
Chapter 31 vocational rehabilitation
record with the claims folder
3. The veteran should be afforded a VA
examination to nature and extent of the
veteran's hemorrhoids. The claims folder
should be made available to the examiner
for review before the examination. All
special studies and tests should be
performed.
4. The veteran should be afforded a VA
orthopedic examination to determine the
nature, extent, and etiology of the back
disorder. The claims folder should be
made available to the examiner for review
before the examination. The examiner
should set forth the current diagnosis of
the veteran's back disorder, and provide
an opinion as to whether it is as least
as likely as not that the veteran's back
disorder, if any, is related to his
service-connected left inguinal hernia
repairs. The examiner should provide
rationale for this opinion.
5. The RO must review the claims file and
ensure that all notification and
development action required by 38 U.S.C.A.
§§ 5102, 5103, and 5103A (West 1991 &
Supp. 2001) are fully complied with and
satisfied.
6. Thereafter, the RO should readjudicate
the claims. If the benefits sought on
appeal remain denied, the veteran and his
representative should be provided a
supplemental statement of the case (SSOC).
The SSOC must contain notice of all
relevant actions taken on the claims for
benefits-to include a summary of the
evidence and applicable laws and
regulations considered pertinent to the
issues currently on appeal. An
appropriate period of time should be
allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran is notified that it is his
responsibility to report for the examination and to cooperate
in the development of the case, and that the consequences of
failure to report for a VA examination without good cause may
include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655
(2000). The veteran has the right to submit additional
evidence and argument concerning the claims the Board has
remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369
(1999).
These claims must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board of Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1,
Part IV, directs the ROs to provide expeditious handling of
all cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Keith W. Allen
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).